Ogman v. Ebbert

Filing 9

MEMORANDUM and ORDER Sustaining petitioner's objectios to the report and recommendation of Magistrate Judge Blewitt; 4 The Report and Recommendation is not adopted and the Clerk of Court is directed to remand case to MJ Blewitt for further proceedings. Signed by Honorable James M. Munley on 7/20/10 (sm, )

Ogman v. Ebbert

Doc. 9

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M A R V IN OGMAN, P e t itio n e r : N o . 3:10cv1342 : : (J u d g e Munley) : : v. : : D A V ID J. EBBERT, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court are petitioner's objections to the report and recommendation o f Magistrate Judge Thomas M. Blewitt, which proposes that the court dismiss the in s ta n t petition for a writ of habeas corpus without prejudice for failure to exhaust a d m in is tra tiv e remedies. B a c k g ro u n d O n June 28, 2010, Marvin Ogman, an inmate at the United States Prison in A lle n w o o d , Pennsylvania, filed the instant petition for a writ of habeas corpus in this c o u rt pursuant to 28 U.S.C. § 2241. (See Petition for Writ of Habeas Corpus (Doc. 1 ) (hereinafter "Petition")). Petitioner contends that he is currently serving a 95m o n th sentence for drug-related charges. (Id.). He is scheduled for release on May 1 1 , 2011. (Id.). Beginning in January 2010, petitioner sought from the Bureau of P ris o n s consideration for a twelve-month placement in a Residential Reentry Center ("R R C ") pursuant to the Second Chance Act, 18 U.S.C. § 3624(c). (Id.). When the

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prison did not respond to his initial request, petitioner on January 17, 2010 filed an In fo rm a l Resolution Form with the prison requesting an "adequate response." (Id.). On January 26, 2010, petitioner requested an administrative remedy from the p ris o n 's warden, Respondent David Ebbert. (Id.). Warden Ebbert responded by d e n y in g petitioner's request. (Id.). Petitioner appealed this decision to the Regional D ire c to r for the Bureau of Prisons, who denied his request. (Id.). On April 16, 2010, p e titio n e r appealed to the Central Office, which initially denied his request for failure to submit paperwork. (Id.). This denial was without prejudice, and petitioner re s u b m itte d his claim. (Id.). Petitioner then filed the instant action, alleging that the p ris o n had violated the Second Chance Act by failing to provide incentives for p ris o n e rs to participate in skills development programs. (Id.). Included among these re q u ire d incentives, petitioner claims, is a statutory mandate to consider prisoners fo r early placement in residential reentry centers. (Id.). Petitioner alleges that his rig h ts were violated because the prison does not properly provide that incentive. He s e e k s immediate placement in an RRC program. M a g is tra te Judge Blewitt provided the petition with an initial screening p u rs u a n t to Rule 4 or the Rules Governing Section 2254 Cases in the U.S. District C o u rts . Judge Blewitt concluded that petitioner had failed to exhaust his a d m in is tra tiv e remedies as required under settled law in this Circuit. He therefore re c o m m e n d e d that the case be dismissed without prejudice. Petitioner filed o b je c tio n s to this report and recommendation, as well as a motion for a preliminary

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injunction, bringing the case to its present posture. J u r is d ic tio n Because petitioner filed his action pursuant to 28 U.S.C. § 2241, the court has ju ris d ic tio n pursuant to 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). Legal Standard When dealing with objections to a magistrate judge's report and re c o m m e n d a tio n , a district court must make a de novo determination of those p o rtio n s of the report to which objections are made. 28 U.S.C. § 636(b)(1)(c). This c o u rt may accept, reject, or modify, in whole or in part, the findings or re c o m m e n d a tio n s made by the magistrate. 28 U.S.C. § 636(b)(1)(c). The district c o u rt judge may also receive further evidence or recommit the matter to the m a g is tra te judge with instructions. Id. Discussion T h e magistrate judge concluded that petitioner's claim should be dismissed w ith o u t prejudice for failure to exhaust administrative remedies. Under federal law, "[f]e d e ra l prisoners are ordinarily required to exhaust their administrative remedies b e fo re petitioning for a writ of habeas corpus pursuant to § 2241." Moscato v. F e d e ra l Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1993). The exhaustion re q u ire m e n t exists for three reasons: "(1) allowing the appropriate agency to develop 3

a factual record and apply its expertise facilitates judicial review; (2) permitting a g e n c ie s to grant the relief requested conserves judicial resources; and (3) providing a g e n c ie s the opportunity to correct their own errors fosters administrative a u to n o m y ." Id. at 761-62. This rule applies unless a petitioner can demonstrate th a t exhaustion "is futile." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (R o th , concurring). Futility can occur when administrative review will not meet any of th e goals of the exhaustion doctrine. Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d C ir. 1981). S in c e the magistrate judge issued his recommendation and the petitioner filed h is objections, the petitioner has informed the court that the Bureau of Prisons has n o tifie d him that his appeal could be considered denied if he did not receive an o p in io n stating otherwise within forty days of filing the appeal. (See Exh. B to Motion to Amend/Correct (Doc. 8)). The Bureau's letter, dated June 30, 2010 informed p e titio n e r that a response to his appeal was due on July 11, 2010, and petitioner re la te s that he has received no such response. (See Exh. A to Motion to A m e n d /C o rre c t). As such, the court concludes that petitioner's appeal has been d e n ie d , and that he has therefore exhausted his administrative remedies. T h e report and recommendation proposed that the case be dismissed without p re ju d ic e for failure to exhaust administrative remedies. Since those remedies have n o w been exhausted, the court cannot adopt the report and recommendation. Instead, the court will remand the case to the magistrate judge to address the issues

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raised in the petition in relation to the Second Chance Act, as well as the motion for a preliminary injunction recently filed by the petitioner. C o n c lu s io n F o r the reasons stated above, the court will not adopt the report and re c o m m e n d a tio n , which proposes dismissing the action without prejudice. Instead, th e court will order the case remanded to Magistrate Judge Blewitt for proceedings c o n s is te n t with this opinion.

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA M A R V IN OGMAN, P e t itio n e r : N o . 3:10cv1342 : : (J u d g e Munley) : : v. : : D A V ID J. EBBERT, : R espondent : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER A N D NOW, to wit, this 20th day of July 2010, the petitioner's objections to the re p o rt and recommendation of Magistrate Judge Thomas M. Blewitt (Doc. 5) are h e re b y SUSTAINED. The report and recommendation is not adopted, and the Clerk o f Court is directed to REMAND the case to Magistrate Judge Blewitt for p ro c e e d in g s consistent with this opinion.

BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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